In 2012, President Barack Obama used his executive discretion to establish the Deferred Action for Childhood Arrivals (DACA) Program. It grants temporary lawful status and work authorization to certain undocumented immigrants who came to the United States as children. The status expires in two years unless it is renewed.

I do not think that President Obama intended information from DACA applications to be used as a basis for finding DACA applicants deportable in removal proceedings, but there is reason to think that it can be used that way. Apparently, he failed to tell the agency charged with implementing the program that application information should not be used for enforcement purposes.

Lack of protection in DACA Program.

President Obama frequently cites this observation by Robert Gates, his first defense secretary, “One thing you should know, Mr. President, is that any given moment, on any given day, somebody in the federal government is screwing up.” President Obama adds: “Even if you’re firing at a 99.9 percent success rate, that still leaves a lot of opportunity for things not to go as planned.” This is illustrated by the following paragraphs from the Frequently asked Questions list on the U.S. Citizenship and Immigration Services website for the DACA program, which explicitly state that the promise not to use application information for immigration enforcement purposes can be “modified, superseded, or rescinded at any time without notice” and was not intended to be relied upon in any legal proceedings. This will make it extremely difficult to prevent the use of information from DACA applications in removal proceedings.

Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes?

A19: Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter. (Emphasis added.)

Q20: If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?

A20: If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.

This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. (Emphasis added.)

Would the deportability of DACA participants be difficult to prove in removal proceedings?

DACA participants have acknowledged that they are aliens, and this is sufficient to establish a rebuttable presumption of deportability under section 237(a)(1)(B) of the Immigration and Nationality Act (INA) for being in the United States in violation of law, unless they can prove lawful presence. See section 291 of the INA, the pertinent part of which reads as follows:

Sec. 291of the INA .... In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, ... If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.

A better way to fix our broken immigration system.

Congress writes the immigration laws, not the president. The president does have discretion on how he implements the laws, but what one president does with an executive order, a subsequent president can undo with a new executive order. Only Congress can provide lasting protections for immigrants who participate in legalization programs. The last permanent legalization program was established by the Immigration Reform and Control Act of 1986, which included a confidentiality provision that prevented information from legalization applications from being used in removal proceedings. The pertinent part of the confidentiality provision reads as follows:

(5) Confidentiality of information. —- Neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may—

“(A) use the information furnished pursuant to an application filed under this section for any purpose other than to make a determination on the application or for enforcement of paragraph (6), ....

Anyone who uses, publishes, or permits information to be examined in violation of this paragraph shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both.

(6) Penalties for false statements in applications....

Will President Elect Donald Trump use information in DACA applications in removal proceedings?

According to recent statements, he plans to focus deportations on convicted criminals, which basically is a continuation of President Obama’s enforcement priorities, and the backlog crisis in our immigration courts severely limits how many people he can put through removal proceedings.

About the AuthorNolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.